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This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.
I’m convinced that removing the gender requirement from marriage will expand the power of the state into areas that are currently none of its business and should never be any of its business. So, I’m frustrated by highly visible, strategically-positioned conservatives who support removing the gender requirement from marriage. For example, the editor of Townhall, Guy Benson, revealed not only that he is gay, but also that he favors redefining marriage. Jason Lee Steorts, the Managing Editor of National Review, published a lengthy article calling for the redefinition of marriage.
This recent case in the United Kingdom illustrates why I’m concerned. A perfectly fit mother lost custody of her child. She was a “traditional” and “informal” surrogate mother. In this context, “traditional” means that she used her own egg, not the egg of a donor. “Informal” means that she did not have a written surrogacy contract with the “intended parents.” And “surrogate” means that she planned to give the baby she carried for nine months, to the “intended parents” in exchange for money.
In other words, she agreed to sell her baby. But once the baby was born, the mother did not want to give the baby up at all.
So why did the judge decide that she must surrender her child to the “intended parents?”
They were a gay couple. The mother made disparaging comments about these two men. The judge ruled that the mother was “obsessive” and “manipulative and duplicitous.” The judge even admitted that “although the baby had come to no harm under its mother’s care, the child would have a more open and healthy upbringing with her father and his partner.” The judge followed up her ruling with a gag order: the mother may not speak about the case publicly until 2032 when the child is 18.
In other words, the state took a little girl from her mother and placed her with members of a politically-favored class.
Look at the discretion and power these legal arrangements give an already out of control judiciary. Three grown-ups have a dispute about who counts as the legal parents. Who steps in to help? Why the all-powerful state, of course. The judge can give any reason or no reason, a good reason or a bad reason.
I frankly don’t care about the reason.
It is bad enough that the divorce industry gives family courts the power to allocate the time perfectly fit parents are permitted to spend with their own children. Genderless marriage goes the extra mile in expanding state power: it gives the state the power to decide who counts as a parent in the first place.
You might say this incident is only about surrogacy, and has nothing to do with gay marriage. You may personally favor gay marriage but oppose surrogacy. I reply that the legal status of surrogacy has everything to do with the definition of marriage, whether any of us likes it or not.
Genderless marriage will create genderless parenthood. Natural biological relationships will be systematically and routinely overridden by socially-constructed government-created relationships. The redefinition of marriage will create its own momentum for adjusting the legal system to further favor and support surrogacy. The political and social pressure will be unstoppable.
Adoption might seem like a precedent that favors surrogacy. But this is not really the case. A child becomes available for adoption only because either a) the biological parents have been found unfit or b) the biological parents voluntarily surrender their parental rights. Neither of those took place here.
Also in an adoption, some evidence will be taken to show the fitness of the adoptive parents. My husband and I had a home study, and a background check, including fingerprinting, before we adopted our son. With surrogacy, intended parents face no such requirements. Anyone with money gets to do anything they want.
So here are my questions for conservatives who support removing the gender requirement from marriage:
Question #1: Why should the government enforce a contract to purchase a human being? How is this the legitimate activity of any government, much less a minimum government?
Question #2: Why should any conservative wish to permit judges the kind of power that is inherent in the deconstruction of parenthood?
Question #3: What about the rights of the child? Has this little girl no rights to her mother? Has she no right to know her identity? Can you possibly argue that the child gave her consent to be deprived of her mother?
And finally, Question #4: Do you really hate women so much that you would create legal institutions that deliberately marginalize mothers in this way? Do you really have such contempt for the poor and the weak, including children, that you would create a set of legal institutions that favors the rich and the strong so blatantly?
In other words, is the right really what its opponents have always claimed: a bunch of rich white men, using political power to further their own privileges, and keep women and the poor in their place?
If not, then quit fooling around trying to make a “conservative case for gay marriage.”
Surrogacy is a profound attack on human dignity and equality. Surrogacy will result in an expansion of the state. Surrogacy is a structural injustice to children and a violation of their civil rights. Redefining marriage will redefine parenthood. Conservatives should be leading the charge to put a stop to all this, not playing footsie with it by supporting the redefinition of marriage.